Constitutionality Is Conceded In Habeas Corpus Arguments

By STEPHEN LABATON

Published: June 4, 1996

WASHINGTON, June 3—
Lawyers arguing over an important challenge to a new law limiting appeals by death-row inmates and other convicts agreed in principle before the Supreme Court today that the legislation did not violate the Constitution.

That was unusual in itself. But what made the oral arguments more unusual was that the Court was hearing the case at all. It is rare for the Court to begin considering new cases as the term comes to its end, and the arguments were heard over the objections of the four most liberal Justices, who had complained that the conservative members of the Court had decided to move too hastily to consider the new law.

And, even though there was no doubt expressed today about the constitutionality of the new law, there was confusion about how the law was meant to work. More specifically, several of the Justices voiced concern that it could have the unintended consequence of foisting an expanded role on the Supreme Court to consider more prisoner appeals just as other Federal courts have been told by Congress and the White House to shut their doors to them.

The law, signed by President Clinton on April 24, sharply restricts death-row inmates and other prisoners from obtaining Federal review of their convictions by curtailing the ability of Federal district and appeals courts to consider habeas corpus petitions. The legislation, the Anti-Terrorism and Effective Death Penalty Act of 1996, sets tough new standards for such appeals, making it impossible for most convicts to file more than one habeas petition.

The rules governing the writ of habeas corpus, a Latin phrase directing a warden to "present the body" to a court, are steeped in technical complexity. But at its essence, the fight over the procedure represents a tension between two important values of justice.

On the one hand, those who have opposed limitations on the writ have said habeas corpus is the only way to make sure that there is a fair review of the convictions and sentences of defendants who are often poor, ill-educated, and represented by marginal lawyers in cases that present the highest stakes. Indeed, there have been a number of instances when the writ was used to prevent innocent people from being executed.

But on the other hand, prosecutors have asserted that habeas rules have to be tightened because they have led to expensive, protracted appeals in which clearly guilty prisoners are not executed until many years after their convictions.

Today the justices considered the law's impact on an older statute written into the first Judiciary Act of 1789, which gives the Supreme Court jurisdiction to consider habeas appeals directly, bypassing lower courts. The older law, now in Section 2241 of the Federal code, has not been used by the Supreme Court since 1925, and it is not mentioned in any part of the new law.

Many of the questions from the bench explored whether the new law had actually limited the jurisdiction of the Court, an issue of considerable importance because of the long-running debate among constitutional scholars about when and how Congress can restrict the authority of the judiciary to review cases.

A majority of justices appeared by their questions to suggest that the new law does not repeal the old law. But they left unaddressed the question of how the court would handle those prisoners, now shut out of most other courts, who would file habeas petitions directly with the Court.

The case today was filed by lawyers for Ellis Wayne Felker, a Georgia inmate who was set to be executed last month after being convicted in the 1981 rape and murder of Evelyn Joy Ludlam, a 19-year-old college student. In 1993, Mr. Felker filed a habeas petition that was denied by the courts. Five days after the new law was signed, he filed a second petition.

Under the new legislation, a second petition may only be considered by a Federal district judge after a convict receives permission to file such an appeal by a Federal appeals panel. In this case, the panel rejected Mr. Felker's second petition, and the High Court, acting with uncharacteristic speed, decided to review the case.

Lawyers for Mr. Felker, the state of Georgia, and the Clinton Administration today asserted that the law did not unconstitutionally suspend the writ. But they differed markedly on how it affected the Supreme Court's authority to review convictions.

Walking away from the position she had initially staked out in her brief, Susan V. Boleyn, a senior Assistant Attorney General from Georgia, maintained that the legislation had by implication repealed the Supreme Court's original jurisdiction to award habeas writs. But that argument was met with skepticism by a majority of the justices. Ms. Boleyn said the Supreme Court, under the new legislation, had no authority to free a convict or declare a new trial, even after Justice Stephen G. Breyer posed a hypothetical case in which other Federal courts had denied a prisoner's appeal even when it was shown that all of the witnesses had lied.

Henry P. Monaghan, a law professor at Columbia University who argued on behalf of Mr. Felker, maintained that his client had a valid claim arising out of Section 2241 that should not be affected at all by the new law, an assertion that was challenged by Justice William H. Rehnquist and Justice Antonin Scalia.

The case marked the final appearance before the Court of Drew S. Days 3d as the Solicitor General. Mr. Days, who is returning to Yale Law School, advised the court to consider upholding both the old and new laws and suggested that the justices should only exercise their original jurisdiction in extraordinary cases.

A decision is expected in the next few weeks in the case, Felker v. Turpin, No. 95-8836.